F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

April 4, 2006
Elisabeth A. Shumaker

Clerk of Court

HORACE BARNES,
v.

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

No. 05-3403
(D. Kansas)

(D.C. No. 01-CV-3202-KHV)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and OBRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Horace Barnes, a federal prisoner proceeding pro se, filed a complaint
under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2690, and

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
399 (1971), alleging negligent treatment by prison medical staff on several
occasions from 1997 to 1999 and seeking four million dollars in compensatory
damages and four million dollars in punitive damages. For the reasons given
herein, we AFFIRM the district courts order granting summary judgment for the
government.
I. BACKGROUND
We present the relevant facts as summarized by the previous panel decision
in this case:
Between August 15, 1997 and May 21, 1998, medical staff at USP
Leavenworth treated Mr. Barnes approximately fifteen times for a rash
and skin irritation on his penis. On December 28, 1998, Mr. Barnes
complained of skin irritation on his inner thigh, scrotum, and penis. H.
Al-Ruballe, a physicians assistant, diagnosed him with jock itch and
prescribed Tolnaftate. On January 27, 1999, Mr. Barnes complained of
a penis infection. Mr. Al-Ruballe diagnosed him with condylomata
acuminata (genital warts), prescribed Podofilox, and treated him from
an unlabelled bottle. When Mr. Barnes returned the next day with
complaints of swelling and soreness in the affected area, Mr.
Al-Ruballe discontinued the Podofilox. Mr. Al-Ruballe and Dr. Phillip
Hill, the clinical director at USP Leavenworth, prescribed
Sulfameth/Trimeth and Clotrimazole. The swelling and soreness
quickly resolved itself because [Mr. Barnes] was never again given a
Podo[f]ilox treatment from an unlabelled bottle. Plaintiffs Objection
to Motion for Summary Judgment, R. Doc. 27, at 28.
On May 22, 2000, Mr. Barnes filed an administrative tort claim with the
Bureau of Prisons alleging that Mr. Al-Ruballe and Dr. Hill treated him
improperly on January 27 and 28, 1999. He sought $100,000 in
damages. On October 19, 2000, the BOP denied Mr. Barness claim
and informed him that he had six months to file suit in federal court. On
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April 19, 2001, Mr. Barnes filed a pro se complaint under the Federal
Tort Claims Act, 28 U.S.C. 2671, and [Bivens,] 403 U.S. 388 (1971),
alleging negligent treatment by prison medical staff on several
occasions from 1997 to 1999 and seeking $4 million in compensatory
damages and $4 million in punitive damages. . . .
On September 24, 2002, the government filed a motion to dismiss or,
alternatively, for summary judgment on the grounds that (1) the FTCA
claim was time-barred; (2) except for the allegations of negligent
medical care between January 26 and January 28, 1999, Mr. Barnes
failed to exhaust his administrative remedies; (3) relief should be
limited to the amount requested in the administrative claim; and (4) the
evidence did not create a genuine issue of material fact on the FTCA
claim. Mr. Barnes filed a motion for continuance of summary judgment,
pursuant to Rule 56(f), seeking time to obtain affidavits and discovery
to oppose summary judgment. . . .
On September 27, 2004, the district court granted the government's
motion to dismiss in part, holding that Mr. Barness complaint was
not time-barred, but that he failed to exhaust his administrative
remedies for all but two claims: (1) that Mr. Al-Ruballe negligently
treated him with medicine from an unlabeled bottle on January 27,
1999, and (2) that Mr. Al-Ruballe and Dr. Hill negligently prescribed
Clotrimazole on January 28, 1999. The court granted the
governments motion for summary judgment on the two exhausted
claims. The court also denied Mr. Barness motion for clarification,
explaining that it was a summary order, and to the extent he sought
reconsideration, his request was denied because he failed to comply
with local rules. Mr. Barnes filed a motion to reconsider, which the
court denied.
Barnes v. United States, 137 F. Appx 184, 185-87 (10th Cir. 2005) (Barnes II).
As to the unlabelled bottle claim, the district court concluded that the
government was entitled to summary judgment because Mr. Barnes has not
shown what was in the bottle or that it was something other than Podofilox what
Al-Raballe intended to use and what plaintiff had received in the past with no
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adverse reaction. Aples Br. Attach A, at 15-16 (Dist. Ct. Order, dated Sept. 27,
2004) (Barnes I). The district court thus granted summary judgment in favor of
the government.
On appeal, a panel of this court affirmed the district courts grant of
summary judgment for the government, with the exception of the grant of
summary judgment on the unlabelled bottle claim. Barnes II, 137 F. Appx at
189. The panel reversed that holding, determining that a reasonable jury could .
. . conclude that Mr. Al-Ruballes negligence injured Mr. Barnes. Id. We
acknowledged that the district court noted that Mr. Barnes failed to submit
verified statements in support of his opposition of the motion for summary
judgment. However, we hesitate[d] to affirm on this alternative ground (that
Mr. Barnes failed to submit verified statements), and remanded because the
record did not demonstrate whether the district court meant to excuse Mr.
Barness failure to provide sworn statements, as required by Fed. R. Civ. P. 56(e).
Id. On remand, the district court clarified its previous order: relying on D. Kan.
Rule 56.1 and Fed. R. Civ. P. 56(e), it explicitly decline[d] to excuse plaintiffs
failure to submit admissible evidence in response to defendants motion for
summary judgment and direct[ed] entry of judgment in favor of defendant.
Aples Br. Attach C, at 1 (Dist. Ct. Order, dated Oct. 3, 2005) (Barnes III).

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II. DISCUSSION
On appeal, Mr. Barnes argues that the district court ignored his many
exhibits from medical records that support his allegations. We agree with the
district court that Mr. Barnes was more than sufficiently put on notice of the
prerequisites for his statements to be admissible. A partys pro se status does not
relieve him from complying with the courts procedural requirements. Ogden v.
San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) ([P]ro se status does not
excuse the obligation of any litigant to comply with the fundamental requirements
of the Federal Rules of Civil and Appellate Procedure.). Although courts should
construe the pleadings of a pro se litigant liberally, such petitions still must
comply with minimum requirements established by local rules. Green v. Dorrell,
969 F.2d 915, 917 (10th Cir. 1992); see Small v. Lehman, 98 F.3d 762, 764 n.5
(3d Cir. 1996) (concluding that unsworn statements do not meet the requirements
of affidavits and thus cannot be used to support motions for summary judgment
or responses thereto), overruled on other grounds by City of Boerne v. Flores, 521
U.S. 507 (1997). That the plaintiff is pro se is no reason to relax this
requirement.
Although Mr. Barnes may not have been aware of Rule 56(e) when he filed
his first opposition, Barnes I and Barnes II put him on clear notice of the rule and
the deficiencies of his initial responses. Even reading the pro se opposition
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papers liberally, in accordance with Haines v. Kerner, 404 U.S. 519, 520 (1972),
they do not comply with Rule 56(e). On appeal, Mr. Barnes makes no attempt to
refute the district courts findings. We conclude that the district court was well
warranted in granting summary judgment for the government.
III. CONCLUSION
Accordingly, we AFFIRM the district courts order.
Entered for the Court,
Robert H. Henry
Circuit Judge

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